Interdicts for domestic abuse
If you want to prevent your partner coming near your home or behaving in an abusive way towards you, you can take out an interdict against them. This is a court order that bans them from carrying out certain specified actions. If your partner breaks the interdict, they can face a fine or a prison sentence. However, this may not be a sufficient deterrent.
What is an interdict?
An interdict is a court order that prevents your partner from carrying out certain actions or going to certain places. There are several types of interdicts and you should speak to a solicitor who specialises in family law for detailed advice.
If your partner breaks the order, they can receive a fine or even a prison sentence.
What kind of behaviour can an interdict prevent?
An interdict can ban any behaviour that is unlawful. Unlawful doesn't just mean illegal, but includes any actions that infringe your rights. So for example you can apply for an interdict banning your partner from:
coming within a certain distance of your home or place of work
coming within a certain distance of your child's school
removing furniture or belongings from your home
physically assaulting you
verbally assaulting you
making abusive phone calls
doing anything to frighten, alarm or distress you or your children.
You can apply for an interdict against a partner or spouse who is still living with you. However, an interdict can't be used to evict someone, even if they have no rights to be there, but it can be used to prevent them from returning once they've been evicted.
What is a power of arrest?
You can also ask the court to attach a 'power of arrest' to certain types of interdict. This means that the police can arrest your partner without a warrant if they break the order on the interdict.
This is a complicated area and it depends on the circumstances (including what type of interdict has been granted and whether an exclusion order has been granted). Speak to a solicitor who specialises in family law for more advice.
Who can apply for an interdict with a power of arrest?
Anyone aged 16 or over can apply for an interdict with a power of arrest to prevent someone from abusing them. However, a power of arrest won't always be granted automatically at the same time as an interdict. In some cases, the court won't be able to grant a power of arrest at all. This will depend on the circumstances, for example, whether any other orders are already in place.
Who can I apply for an interdict against?
You can apply for an interdict with a power of arrest against your spouse, civil partner or cohabitee (a same-sex or opposite-sex partner who lives with you) or against any individual who is abusing you mentally or physically. This could be a partner who doesn't live with you, an ex-spouse, ex-civil partner or ex-partner, a family member or neighbour or someone who is stalking you.
How long does a power of arrest last?
The court has to set a time limit when the power will expire. The maximum time limit is three years, but the power can then be extended if the court believes this is necessary.
How do I get an interdict?
To get an interdict, you need to apply to the sheriff court or Court of Session. Although you can make the application yourself, this is a difficult process, so it's best to get a solicitor to apply for you. Only a lawyer can do this for you if you don't do it yourself. You couldn't, for example, ask a Women's Aid worker to make the application for you.
Your solicitor will prepare a legal document called an initial writ which explains:
your relationship to the person you want to take the interdict out against (called the 'perpetrator' or the 'defender')
how this person has behaved towards you in the past
why you think they are likely to repeat this behaviour in the future.
If you don't want your partner to know your address (for example, if you have moved to escape abuse), ask your solicitor to use their office address instead.
If you are worried that your partner may distress or harm you before the interdict can be granted, you can apply for an interim interdict.
What is an interim interdict?
An interim interdict can be granted as soon as you make an application to the court for an interdict, before the perpetrator has had the opportunity to be heard in court. The court will base their decision on the information in your application.
You don't have to appear in court personally to get an interim interdict. However, if the perpetrator defends the action you may have to appear in court at a later date.
How does the court decide whether to grant an interdict?
When deciding whether the grant an interdict, the court has to be sure that:
the behaviour you want to ban is unlawful
the perpetrator is likely to try to carry out the action(s) you want to prevent
there is the likelihood of immediate harm to you
the behaviour can be clearly explained so the perpetrator will understand what it is they're banned from doing
the interdict is necessary for your protection.
Because this is a civil action, you don't need to prove 'beyond all reasonable doubt' that the perpetrator is abusing you in order to get an interdict. The court has to decide whether it is more likely than not that they are abusing you.
Will I have to go to court?
In most cases, you won't need to appear personally in court in order to get an interdict granted. If you do need to go to court to give evidence about the abuse, your solicitor will explain to you how court procedure works and what you'll need to do and say.
When does an interdict come into effect?
An interim or final interdict starts on the day the perpetrator receives the papers setting out the conditions of the order. They then have the option to defend themselves in court. If they decide to do so, the court hears evidence from you and the perpetrator. If the court decides that you have proved that it is likely that the perpetrator will carry out the prohibited action, it will grant a perpetual interdict.
If your partner chooses not to defend the action, you must decide whether to apply for a perpetual interdict (an interim interdict lasts for a year and a day from the date the defender receives the papers). The court will grant a perpetual interdict if it believes you need one, or it may decide to extend the interim interdict instead.
How effective is an interdict?
Unfortunately, just because your partner has an interdict against them, it doesn't mean they'll stick to what it says. In particular, if your partner has mental health problems or issues with drug or alcohol abuse, an interdict may not be enough to protect you.
What happens if my partner breaks the interdict?
If your partner breaks the order, it's up to you to report them and take further action against them.
If the interdict has powers of arrest attached, the police can come and arrest your partner without a warrant if they break the order. They can then detain them until they can appear in court. If the sheriff believes that your partner has broken the order and is likely to do so again, they can order them to be detained for another two days in order to protect you from further harassment or abuse.
You will then need to decide whether you want to apply to the court for a breach of interdict. Again, you'll need a solicitor to do this for you as it is a complicated process and you'll need to prove to the court that the breach definitely took place. If breach of interdict is established, the court has the power to impose a fine or a term of imprisonment for up six months.
How much does it cost to get an interdict?
The process of applying for an interdict may be expensive. However, you may be entitled to legal aid, and your solicitor will be able to help you with this.
Last updated: 8 May 2019
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